July 3, 2013

He seeks to increase predictability and to reduce the risks associated with judicial discretion. He favors general rules, not case-by-case judgments. In his view, such rules simplify life for ordinary people and the legal system as a whole. They also reduce the danger that political preferences will end up dominating judicial decisions....

One of the most vivid writers in the court's history, he knows how to deliver a punch. Sometimes he seems to think that people who don't see things his way aren't merely in error but are also foolish, unacceptably political, even lawless.

Those who disagree with Scalia are entitled to object to his votes and his tone. At the same time, they should understand that his broadest commitment is to the rule of law. They should honor that commitment, and they should respect his efforts to develop an approach to interpretation that is compatible with it.

Sunstein absolves Scalia of partisanship: He's committed to the rule of law and not to "any political ideology."

I offer this proposition for debate: Sunstein himself is a political ideologue playing a partisan game, and this absolution for Scalia is a clever gambit.

51 comments:

" Sometimes he seems to think that people who don't see things his way aren't merely in error but are also foolish, unacceptably political, even lawless."

That just makes him Althouse lite. She would add politically clueless, bigoted, lording, totally uncool, and not someone you should let come to your party, but please support my continued disdain for you by using the Amazon portal.

Scalia and Sunstein were colleagues on the faculty of the University of Chicago Law School in the early 80s.* I had Scalia for Contracts and Sunstein for Civ Pro and they were both unambiguously brilliant minds. (There was wide agreement among the 1Ls that Sunstein was the smartest man on the planet.) I have no doubt that Sunstein has genuine respect for Scalia. I also have no doubt that Sunstein would like to be Scalia's colleague again in his current job.

*Genuine faculty members, not pretend faculty like our current President.

Sounds about right to me. But Scalia is scorned for using actual logic and trying to do his job the way the founders meant.

I know some like our author here prefer the court use things other than the constitution for their decisions. How else will the government be concerned about their feeeeellllliiiinngggsss? How else would the justices be able to insert themselves into every facet of our lives?

"I offer this proposition for debate: Sunstein himself is a political ideologue playing a partisan game, and this absolution for Scalia is a clever gambit."

Why deliver it in that way? Wouldn't a better, more "teaching" way of forming that question be to say "What is the evidence for Sunstein himself being a political ideologue and writing this piece as a clever gambit? And what is the evidence against that?"

The question seems to be phrased less to lead to illumination and more to encourage conflict and define boundaries for sniping.

After reading a good handful of opinions authored by Scalia, I agree with Sunstein--Scalia is consistent in his approach. But his consistenty is what makes him crazy or beyond rigid. When you choose a position and stick to it the way he has, things will be simpler, but at what cost? Yet with such rigidity comes nonpartisanship.

Now to analyze your comment about Sunstein: I think we should go back to the original thought that preceeded his comment . . .

Does it matter if we stipulate that Cass Sunstein is himself a political ideologue playing a partisan game? As a mathematician who makes his living in the real world I have only raw contempt for people who start with the assumption that a person is partisan and therefore wrong. A person can be a partisan and still be right. Truth is objective and can be measured and determined up to the limits of Gödel's theorem.

An infinite number of mathmaticians walks into a bar. The first one says I'll take one beer. The second says I'll take 1/2 a beer. The third, 1/4 of a beer. The bartender slams down two beers and says, you all need to learn your limits.

I suspect Sunstein is playing the small 'l' liberal and rule of law angle to get his own ass back towards the center. This reads like he's writing to the NY Times crowd for maximum effect.

His 'libertarian paternalism' is probably more respectful of individual liberty than say Noam Chomsky's anarcho-syndacalism and libertarian socialism, but honestly, not by that much as it's still based in Enlightenment rationalism and a bid away from the further Left.

"I offer this proposition for debate: Sunstein himself is a political ideologue playing a partisan game, and this absolution for Scalia is a clever gambit."

I offer this proposition for debate: Ann Althouse herself is a social-issue ideologue playing a partisan game, and this tarring with broad brushes is a clever gambit in the campaign to claim homosexuals are without shortcomings of any kind, and supporters of SSM are morally superior.

I think of it like branches from a tree trunk. They might both be rigid, yes, but according to different criteria. The criteria the rigidity adheres to is an earlier branch from the tree, and I don't mean left vs right.

Perhaps, but what is the goal? Sunstein is partisan yet correct in this instance. I can't see what he stands to gain from this, other than the satisfaction of voicing respect for someone who doesn't get enough of it.

paraphrase:Scalia can't be considered non-partisan, because he insists on sticking to his scholarly and intellectual principles even if it puts him on the wrong side of my effervescently fashionable socio-political cause!

I wonder why Sunstein is trying to disinfect Scalia on the law to the rest of those that are reading this. A better target would have been trying to white wash what CJ Roberts did in Urklecare. Go after that and let's see your tract, Sunstein. People know what side of the fence Scalia sits on.

I strongly suspect that Sunstein will be Obama's next pick for the Supreme Court, should an opening arise. They go way back to their days together at the University of Chicago Law School and this article is a shiny object that will distract people from looking at Sunstein's record, especially the role he's played in the Obama administration.

So, Sunstein agrees with Scalia that a society must be directed by principles. That they cannot be selective or derived from feelings. This, of course, does not imply that Sunstein agrees or accepts Scalia's principles or those set forth in our national charter and Constitution. Sunstein is not conservative.

Maybe neither Sunstein not Althouse feel compelled to absolve Justice Kennedy of the spectacular lack of judicial temperament demonstrated in his DOMA decision (which shocked and dismayed Scalia) because they agree with Kennedy that DOMA is enacted bigotry and like Kennedy they don't have to give a single example of why DOMA is enacted bigotry they just know it is and that is sufficient. After all, they're good people, which substitutes for proof.

If Sunstein's nothing but a partisan hack, then his article of no interest. If, OTOH, he simply has the ability to offer an unbiased analysis of Scalia's jurisprudence, then Althouse's post is of no interest.

It has been observed, rightly, by others already. The real, true reliable partisans -- the judges who were going to uphold the old preclearance provisions of the Voting Rights Act because they favor the politics behind it, and who favored expansion of gay rights because they personally like that legislative result -- are the four liberals, all nominated by Democrats.

There is never much doubt how they will vote. Only the court conservatives trouble themselves with legal principle.

Is it really necessary to take the bait being trolled and start to slam on Sunstein? Given his excellent work at identifying conspiracy theorists' "crippled epistemology", I'm very inclined to give him slack and look at the merits of things he says. Even presuming he's liberal (and given his profession, that's a better than three-quarters chance of that), he's demonstrated that he's willing to work through things using logic and reason.

If there's an argument from him deserving to be attacked, then attack the argument and not the one forwarding it. Harrowing the messenger doesn't actually do squat to the message.

So you think it's a nudge and a wink. If he's nudging the senate, he's probably the best (from my point of view) that one can expect from an Obama nomination. However, I doubt he can make it to the Supremes. Too long a lawprof. Too Borkable.

I am reminded of a Leno with Howard Stern from many years ago. Off on a rant, Stern started commenting on what blacks wanted. Leno quipped while rolling his eyes, "Well, if anyone knows what black people want, it'a you, Howard." Stern just said, "Yeah", and charged on. I'd say Sunstein's take on any conservative is just about as informed as Stern's on blacks.

Having attended Scalia's Separation of Powers seminar I can attest to his devotion to a predictable methodology grounded in an textualist / originalist / historical framework.

If you read his dissents he typically will not only disagree with the outcome but will take the majority to task for faulty methods. The DOMA case is a prime example. Another is Morrison, the independent counsel case from the late '80's. In that one has this great riff taking down the notion of multi-factor tests, case-by-case analysis etc as undermining clarity and predictability of the law to the point of undermining the rule of law itself -- as these method allow the case to be essentially decided by the last judge to have it.

Another is Rogers v. Tennessee, and ex post facto case where he teaches the majority just what the common law really is.

Writing for the majority he usually makes a point demonstrating how his methodology works to guide him to the outcome rather then starting with a desired outcome and working backward with whatever method get him there. See Heller (DC gun rights case) for a good example of this.

I think Suntein's complimentary editorial was sincere. There are people in the law who can disagree but maintain a mutual respect.

Scalia thinks Proposition 8 is between the Californians. If Californians want to pass initiatives and then not elect politicians ready to enforce them, Scalia doesn't believe it is his job to sort that out.